The main legal point established in the judgment is that the Nambudiri Act did not apply to Embrandiri Brahmins, and the court allowed the 1st defendant to raise a contention regarding the customary law of 'impartibility' governing the Nambudris.

1. This civil miscellaneous appeal is directed against an appellate order of the court below, which set aside the decree of the trial court and remanded the suit for fresh disposal, in the light of the observations contained in it.

2. The suit was for partition and recovery of the plaintiff's one-third share in the schedule properties. According to the plaintiff, the community of Embrandiri Brahmins to which the parties belonged was governed by the Mitakshara Hindu Law; so the plaintiff was entitled to an equal share along with his two brothers the defendants 1 and 2. The 1st defendant who was the eldest of the brothers and as such the family Kartha, resisted the plaintiff's claim on the basis inter alia that the parties were Malayali Brahmins forming members of an illom governed by the Madras Nambudiri Act, 21 of 1933 and the properties of the illom could be partitioned, if at all, only under the provisions of that Act. He contended, that in this view the remaining members of the illom, viz., his wife and five children were necessary parties to the suit. The 2nd defendant supported the plaintiff's case and claimed division for himself The question of the personal law governing the parties, which arose on the contentions of the parties as above, was the subject-matter of Issue 1 as follows:

"Whether the plaintiff and defendants are governed by Mitakshara law or Nambudiri Act of 1933."

3. The plaintiff as Pw.1, gave evidence on the above issue that the ancestors of the parties migrated from the northern part of the District and settled at Pullur some years ago, that they continued to follow the Mitakshara law of inheritance and, had not adopted the customs and usages of Nambudris. In this he was supported by Pw. 2 who was also an Embrandiri. The 1st defendant as Dw.1 however testified that the customs and usages adopted by their ancestors were entirely different from those of the followers of the Mitakshara law but on the other hand were in many respects the same as those of the Nambudris notwithstanding that they were still calling themselves Embranthiris. They must according to him be governed by the Nambudri Act. He also produced Ext. B-2 judgment dated 30-6-1942 in O. S.384 of 1940 on the file of the District Munsiff, Kasargod, to show that their distant kinswoman of the Vadakkey Puthi Illom and from whom in fact they got items 6, 8, 9,10 and 15 in due course of inheritance, had been held to be governed by the Nambudri Act.

4. The learned District Munsiff of Hosdurg before whom the case came on for trial, accepted the plaintiff's version and went on to find issue 1 in his favour and finally granted preliminary decree for partition of the plaintiff's 1/3 share in conformity with his findings on the rest of the issues. In appeal by the 1st defendant the Subordinate Judge of Kasargod reversed the finding of the trial court on Issue No.1 and held that the parties were governed by the Nambudiri Act. According to the learned Judge, Ext. B-2 was an important piece of evidence to show that the parties in the present suit had adopted the personal law governing the Nambudris. For, otherwise there was no scope for the devolution upon their illom, of the property of an illom which had been held to be governed by the Nambudri Act by that decision, and their exercising powers over it. The fact that the parties were styling themselves as Embranthiris was not a conclusive test in the matter. The learned judge relied upon Sundara Iyer's Treatise on Malabar and Aliyasanthana Law and the judgment of Muthuswamy Iyer, J. in Vasudevan v. Secretary to State, I. L. R.11 Madras 157, to hold that some of the Nambudris found in Malabar were descendants of Embranthiri Brahmins of Canara, which had adopted the peculiar Nambudri customs and usages and also the personal law governing Nambudris. In the result, the learned judge allowed the appeal and remanded the suit for fresh disposal, after impleading the wife and children of the 1st defendant